Humphrey v. Chilcat Canning Co.

Strahan, C. J. — The principal exceptions relied upon were taken during the progress of the trial. The record recites that the plaintiff gave evidence tending to support his cause of action and then rested The defendant then introduced testimony tending to prove that one Murray was its general manager and engaged in hiring men to enter its service and go to Alaska and there engage in the business of canning salmon; that at the time said contract of hiring was closed, plaintiff and about twenty-five other persons wishing to enter the defendant’s service were present; that at said time the contract containing the terms upon which the men were being employed by the defendant was read over in the plaintiff’s presence and hearing, and that he then and there assented to all of its terms except that he would not be bound for any definite time, and his wages were to be $100 a month. For the purpose of placing before the jury all of the terms and conditions of the contract which the defendant claimed the plaintiff entered into with it, the defendant’s counsel then offered to read to the jury the said writing and to show that plaintiff assented to all of its terms except as above, but [212] the court excluded it, and an exception was taken. The writing is as follows: “This agreement, made and entered into this 23d day of January, 1889, by and between the Chilcat Canning Company of Astoria, Oregon, and the undersigned, witnesseth: That for the consideration of free passage from Astoria to Chilcat, Alaska, and $50, with board, per month of thirty days, Sundays included, we do hereby agree to go to Alaska with the Chilcat Canning Company and work at their salmon cannery in Alaska during the season of 1889, fishing and doing any other work required of us, such as erecting the necessary cannery buildings, getting out the necessary wood for fuel, lightering freight to and from the steamer to the cannery, and, in fact, doing any and all kinds of work at any and all times whenever required of us. The Chilcat Canning Company further agrees to pay to the undersigned one cent for every red salmon caught and delivered into their cannery, and also pay their passage from Chilcat, Alaska, to Astoria, Oregon, at end of season. The Chilcat Canning Company reserves the right to discharge any of the undersigned for any cause, such as intoxication, neglect of duty, disobedience, or refusal to work whenever called upon at any time. The Chilcat Canning Company will not pay the return fare of any one so discharged, or any one that quits of his own account, nor allow any wages for the time going up to Alaska on the steamer, but will only pay for the actual time worked in Alaska. Time to commence when steamer leaves Astoria and end when the undersigned are landed back to Astoria at end of season. Wages to be paid at end of season at the office of the Chilcat Canning Company in Astoria, Oregon. “ Chilcat Canning Company, “D. Morgan, President, “By W. A. Sherman, Secretary.” [Signatures of employes.] The defendant’s contention on this appeal is that this writing was reaci. over to the plaintiff and in his presence and hearing at the time he was employed, and that he [213] orally assented to all of its terms, and that it thus became a part of the transaction itself r — a part of what was said and done by the parties at the time of the hiring tending to prove what the contract was between the plaintiff and defendant, and that for this purpose it was competent. It is not claimed that the contract between the plaintiff and defendant is a written contract, On the contrary it exists entirely in parol; but what was said and done by the parties and what was read at the time the contract is alleged to have been entered into, were competent evidence to be considered by the jury for the purpose of enabling them to determine what the terms of such contract were, Hill’s Code, § 686, clearly and succinctly states the principle of law applicable in such case: “Where, also, the declaration, act or omission forms part of the transaction which is itself the fact in dispute, or evidence of the fact, such declaration, act or omission is evidence as a part of that transaction.” This section is declaratory of the common law. It is a legislative definition of res gestx. What is res gestx and what not, are sometimes difficult to distinguish, but the difficulty in making the application does not in any manner impair the rule. Wharton’s Ev. § 1102, says: “It may, however, happen that statements of a party are so interwoven with a contract as to form a part of it, or are so wrought up in a transaction that they form a necessary incident of any narrative of such transaction. In such case the party’s declarations are admissible, as we have already seen, as a part of the res gestx.” So it is said in Wood’s Practice Evidence, § 150, that “whenever the acts or declarations of a party, made at the time of a transaction and so intimately connected therewith as to form a part of it which tend to explain the transaction or to aid in arriving at the real nature, character and purpose of the transaction, are admissible in evidence as well for as against the party making them.” * * * So in Bank v. Kennedy, 17 Wall. 19, it was held that conversations occurring during the negotiation of a loan or other [214] transaction as well as the instruments given or received, being part of the res gestse, are competent evidence to show the nature of the transaction, and the parties for whose benefit it was made when that is material. Lathrop v. Bramhall, 64 N. Y. 365, was a case where a memorandum relating to the terms of a parol contract was made at the time by one of the parties negotiating the contract and read over to the others, and it was held that although not itself a valid contract it was competent as evidence to corroborate the oral evidence as to the terms of the contract. In that case, Miller, J., delivering the opinion of the court, said: “ It was not offered to refresh the memory of the witness and was not admissible in that point of view, and the rule applicable in such case cannot be invoked, nor was it competent alone as the contract of the parties, but it was evidence which corroborated the oral proof as it coincided with it as to the terms of the contract. The two together showed what the contract war and there can be no valid objection where an oral contract is made to prove that its principal terms were written down and a memorandum made of them and read at the time. The one is not a substitute for the other, and both are properly admissible without violating any rule of law. It is not a case where a valid contract is made in writing which entirely supersedes the oral contract, but one where an ora! contract is entered into and a memorandum made at the time regarding its general features and characteristics.’’ The effect of these authorities is not countervailed or broken by anything presented in behalf of the respondent, and the paper offered in evidence was clearly within the principle announced. According to the defendant’s contention, the paper in question, with the exceptions already noted, recited the terms of the contract which the defendant entered into with the plaintiff. It became so, not because it was executed by certain of the parties, but because it was read over in his presence and hearing at the time of the hiring and assented to by the plaintiff. This made it admissible as a part of the transaction and in the strictest sense res gestse. Of course in [215] what is here said it is not to be understood that we express any opinion as to the weight of any of the evidence. That is not the province of the court. All that we decide is that the memorandum offered was competent evidence to be submitted to the jury under the circumstances, and that its exclusion was error, for which the judgment must be reversed and a new trial awarded.